95 Mich. 474 | Mich. | 1893
The facts in this cause, briefly stated, are as follows: John Knapp and his wife, Emily, resided in Wisconsin, and on February 9, 1885, executed the following contract upon an agreement to separate:
“ Whereas, my husband, John Knapp, of Princeton, Wisconsin,.has this day secured me the payment of $2,800 by his note and mortgage upon his farm, which sum so secured I hereby acknowledge my fair and just part of the property which we have and hold:
“Now, therefore, in consideration of the said sum so secured, I do hereby release to him, the said John Knapp, all claim, title, and interest in the property owned and possessed by the said John Knapp, and. I hereby waive all claim which I may have as the widow of said John Knapp (if I shall survive him) by or under the laws of the state of Wisconsin; and in case of a legal separation between the said John Knapp and myself, the sum so secured by him I hereby accept in lieu of alimony, support, and all other expenses, except I am to have just and liberal support until-the 10th day of June next; and, further, I am to have one-half of the beds and bedding in the house, and such few dishes as I may choose to take.
“Witness my hand and seal this 9th day of February, 1885;
lier
“Emily X Knapp.
mark
“In presence of
“John Sullivan.
“George D. Waring.”
The mortgage was delivered to Emily, and the parties separated. Proceedings for’ divorce were commenced September 28, 1885, by the husband, and proofs were taken, but the cause was discontinued in April, 1886. Subsequently the parties met in Michigan, and' “lived, and kept house by themselves together in Davidson for a few weeks,” when they again separated. The husband afterwards made a will, leaving his property, consisting of between one and two thousand dollars5 worth of personal property, to a nephew and some nieces, to the exclusion of his wife, stating in the will, as a reason for making no provision for
It may be doubted whether the contract precludes her from receiving a share of her husband’s property, as it in terms confines her waiver to such claims as she might have “as the Avidow 'of John Knapp under the laws of'the State of Wisconsin.” It does not purport to waive all claims. Whether the law of Wisconsin gives to the widorv the same statutory allowance and distributive portion of her husband’s personal estate as does the law of Michigan we have no means of determining from this record, and must therefore assume that the common-law rule prevails there, which gives neither. It cannot, therefore, be said that she waived them.
The testimony shows that the parties became reconciled, and lived together for a time, after coming to Michigan. Under many authorities this avoided the contract, and she became entitled to her former rights. Story, Eq. Jur. §§ 1427, 1428; Shelthar v. Gregory, 2 Wend. 422; Kehr v. Smith, 20 Wall. 31; Carson v. Murray, 3 Paige, 501.
We therefore conclude. that the defendant was entitled to her full rights in her deceased husband’s property, under the law of Michigan.
Counsel for the complainant seem to have proceeded upon the theory that the amount received by her upon separation was an equitable claim against her on behalf of the estate; but we find no authority for such a pr.opo
Without saying that equity cannot entertain such a case as this, we feel that there is little excuse for bringing it here. Our law (How. Stat. § 5964) gives to probate courts the authority to make decrees assigning estates to those by law entitled to the same. This would seem to confer the power to adjudicate between contesting claimants, as was done in the case of Jenks v. Trowbridge Estate, 48 Mich. 94. In the present case the complainant’s bill asks a decree denying to the defendant a hearing in the forum expressly provided by law for such cases.
The decree of the court below, dismissing complainant’s bill, -will be affirmed, with costs of both courts against the complainant.
